Domain Ownership Question

[CenterPoint]

I would be interested in anyones thoughts or opinions on the following situation.

Approx 2 ½ years ago I sold one of our mortgage related .CA domains to a buyer for about 3K. Not being a trusting sole, I arranged for my lawyer to handle the transaction. Papers were drawn up stating that on receipt of full payment we would transfer the name

As the buyer made payment with a number of post-dated checks we agreed to redirect the DNS until all checks cleared and we transfered the name. Once the payments had cleared I initiated the transfer through the registrar and CIRA. Despite three transfer attempts, and numerous phone calls and emails the buyer never completed the transfer and the domain remained in my name

Some seven months after the sale the domain expired. I allowed it to expire and waited until the last minute just before CIRA released the name to renew it for one year. Since that time I have renewed the name two additional times.

About a year ago we received a cease and desist letter from the government agency that regulates the mortgage industry here. Apparently this guy was claiming to be a mortgage broker without a licence and as the whois listed my firm, the regulator came after me. At that point we stopped redirecting the DNS

Last week out of the blue the buyer called me looking to get the domain transfered to his name.

In my opinion he no longer has any rights to the name. What do you think?

 

[Keynes]

The key to all of your answers lies in your contract -- were there any terms with respect to your obligations and rights in the transaction? Surely, this should have been addressed in the process of using an attorney

 

[CenterPoint]

Actually they were address as per the sale was concerned. Both sides of the sale were fulfilled even though their were payment issues

Despite the legal fees that were incurred due to his misrepresentations. I feel that as he failed to complete the transfer and then did not make any effort to renew the domain not once but three times he has lost any rights to the domain.

After all if we did not renew the domain he would have lost it.

 

[SuperTrooper]

Actually they were address as per the sale was concerned. Both sides of the sale were fulfilled even though their were payment issues

Despite the legal fees that were incurred due to his misrepresentations. I feel that as he failed to complete the transfer and then did not make any effort to renew the domain not once but three times he has lost any rights to the domain.

After all if we did not renew the domain he would have lost it.

The very minute that you renewed the domain, you should have taken the dns off to whatever you had it to for him. However I would think legally since you had basicly reregistered the domain after he failed to do so, the domain is your again. But really that may come down to a judge to decide. You will have to show judge the time of contract with buyer, and proof that you bought domain again from register when other person failed to do so. Any judge that awards the domain to other guy after he decided not to register it, well that judge would be a moron.

 

[wisconsin]

In my opinion he no longer has any rights to the name. What do you think?

Who do you think is the owner? You?

No, you are not! You still have obligation under the sale contract as you explained it [the buyer completed his contract obligation by releasing and transferring the funds to you...But you did not complete yours regardless of the registrar transfer technicalities] unless you had some unusual sale terms in the sale transaction you haven't mentioned, yet! You may be considered as the "keeper" or "maintainer" of the domain but certainly not the owner. You can ask for the renewal cost but, legally and ethically, you can not claim you're the owner now.

the buyer is asking for his domain and you need to transfer it.

 

[stscac]

Unless there was a clause in the binding legal document saying that the name was to be transferred x amount of time after full payment, and the cause of the non-transfer was the buyer, you might have claim to the name.

Otherwise, wisconsin is right.

-Steve

 

[SuperTrooper]

Who do you think is the owner? You?

No, you are not! You still have obligation under the sale contract as you explained it [the buyer completed his contract obligation by releasing and transferring the funds to you...But you did not complete yours regardless of the registrar transfer technicalities] unless you had some unusual sale terms in the sale transaction you haven't mentioned, yet! You may be considered as the "keeper" or "maintainer" of the domain but certainly not the owner. You can ask for the renewal cost but, legally and ethically, you can not claim you're the owner now.

the buyer is asking for his domain and you need to transfer it.

Sorry, but the other guy gave up the domain when he didn't renew it. I have been through this before myself, and I won the court hearing since I renewed the domain when the buyer didn't. Its very clear and simple, you don't renew, you don't own it anymore!

 

[Dave_Z]

Interesting, SuperTrooper. That would have to be really fact-intensive to get
a decision in your favor.

It'll be nice if you can post a link to it. But it's understandable if you don't.

 

[wisconsin]

Sorry, but the other guy gave up the domain when he didn't renew it. I have been through this before myself, and I won the court hearing since I renewed the domain when the buyer didn't. Its very clear and simple, you don't renew, you don't own it anymore!

Hi SuperTrooper!

I think we are talking about different things here...

Yes, if you let a domain drop and someone registers it...is a different scenario

in this case, the transfer of ownership never took place and the sale contract was not completed as agreed, moreover, the seller kept the "whois" info under his name instead of the buyer, and the domain did not drop but instead the seller continued to renew it as he was the legitimate owner.

The buyer could argue that seller never fulfill his obligation, under the sale contract terms, and completed the transfer even after he received the money. The seller always kept possession of the name.

Here, the seller claims that because the buyer did not follow the registrar technical procedure, he lost the domain, it is considered incomplete transfer; and therefore, the seller becomes the rightful owner!!!

Does renewing a domain, after you sold it and accepted the funds, make you the owner? regardless of renewing it at the last minute.

Changing the dns and the whois to the buyer while continuing to be in possession and in control of the domain all these years is considered to be in default of the sale contract unless you specified clearly some terms that cover it.

The seller mentioned, that until recently, he had the domain name dns pointing to the buyer's website, which somehow, acknowledges the buyer's rights to the name.

 

[IAmAllanShore]

Sorry, but the other guy gave up the domain when he didn't renew it. I have been through this before myself, and I won the court hearing since I renewed the domain when the buyer didn't. Its very clear and simple, you don't renew, you don't own it anymore!

I think that Dave was being too polite...

This wasn't in the U.S., was it? A quick search turned up "bingo" that would fall under this description of events...

-Allan

 

[RJ]

Why do you would still want the domain, now that it's causing you trouble with the government? Wouldn't it be in your favor to hand it over to the buyer and wash your hands of it?

 

[Damion]

Some seven months after the sale the domain expired. I allowed it to expire and waited until the last minute just before CIRA released the name to renew it for one year. Since that time I have renewed the name two additional times.

About a year ago we received a cease and desist letter from the government agency that regulates the mortgage industry here. Apparently this guy was claiming to be a mortgage broker without a licence and as the whois listed my firm, the regulator came after me. At that point we stopped redirecting the DNS

Last week out of the blue the buyer called me looking to get the domain transfered to his name.

In my opinion he no longer has any rights to the name. What do you think?

One thing that strikes me is that the buyer was using the domain in bad faith by posing himself as a licensed realtor and using the OP's whois listing to hide his/her own identity.

I don't know about other people here but in my view that is called fraud.
The OP renewed 2 times as he said and tried to contact the buyer numerous times but the buyer did not respond.

Why? Because he/she is posing as licensed realtor and hiding behind a fake whois.
Clearly fraud is at play here.

In my opinion the OP has no problem keeping the domain in his ownership as this socalled buyer was using this domain in bad faith. And a court decision would rule in the favour of the OP.

But i am no lawyer but this sounds plausible to me.

On the other hand it is naive from your part CenterPoint not pressing the buyer to change the WHOIS and taking measures to complete the WHOIS change.

Perhaps this may also be something that can be turned against you?

 

[wisconsin]

One thing that strikes me is that the buyer was using the domain in bad faith by posing himself as a licensed realtor and using the OP's whois listing to hide his/her own identity.

I don't know about other people here but in my view that is called fraud.

Hi Damion,

in my opinion, this is irrelevant! at least from a "sale contract" stand point[may be other members see it differently]

CenterPoint is asking whether the buyer has any rights to the domain [I understand he believes NOT]. the sale contract and ownership of the domain is the main discussion unless I understood it differently!

The "fraud" and compliance of local law use and "license" is another case, and it certainly does not give the seller the right to keep the money and the domain after a sale contract was agree upon and signed [I assume]

CenterPoint, it would be helpful if you can share the contract language. If you can't, it's understandable.

Thanks

 

[Damion]

Hi Damion,

in my opinion, this is irrelevant! at least from a "sale contract" stand point[may be other members see it differently]

CenterPoint is aking whether the buyer has any rights to the domain [I understand he believes NOT]. the sale contract and ownership of the domain is the main discussion unless I understood it differently!

The "fraud" and compliance of local law use and "license" is another case, and it certainly does not give the buyer the right to keep the money and the domain after a sale contract was agree upon and signed [I assume]

CenterPoint, it would be helpful if you can share the contract language. If you can't, it's understandable.

Thanks

I am no lawyer but i guess if one is crossing the path from legal to criminal offense then the right to the domain goes out the door.
Since the buyer has been posing as a realtor i guess it's a criminal offense or maybe not and it's a different type of case.

Which maybe puts the buyer in favor over the seller.

 

[labrocca]

This seems pretty simple to me. Buyer BOUGHT the domain..it's his. You should have let it drop. Now there is government problems with it ..even more reason to give him the domain. He paid for it..give it to him. Sure he is a tard for not taking it sooner but oh well...

imho your mistake was to renew it and keep whois in your name...

 

[Damion]

Would the OP not put himself in a difficult situation because he would ignore the C&D order?

It is a bit strange that the C&D was from a year ago as the OP mentioned You should have expected that there will be follow ups of some sort.

But government bodies can be a bit slow :hehe:

I would transfer it to the issuer of the C&D to be on the safe side. The buyer was already in violation for abusing the domain and even the registrants information.

Would the buyer have any legal claim to the domain after he was using it in bad faith as he is not a licensed broker which can even lead to jail time?

Scroll all the way down untill you see the purple highlights.

Every person who contravenes any provision
of this Act or the regulations for which no specific
punishment is provided is guilty of an offence and is
liable on summary conviction to a fine not exceeding
$5,000 or to imprisonment for a period not exceeding
six months or to both.

Better be sure to know what the deal is on ignoring a C&D letter.
Maybe i am drawing the wrong conclusions here?
Just my 2 cents of course...

 

[CenterPoint]

Why do you would still want the domain, now that it's causing you trouble with the government? Wouldn't it be in your favor to hand it over to the buyer and wash your hands of it?

Don't really need or want the name. But it is still quite valuable and its sale would help me recover some of the legal fees accumulated dealing with the crap he caused.

Good hearing from you RJ it has been a while

One thing that strikes me is that the buyer was using the domain in bad faith by posing himself as a licensed realtor and using the OP's whois listing to hide his/her own identity.

Actually it he was holding himself out as Mortgage Broker. The mortgage industry in Ontario is strictly regulated to prevent mortgage fraud

The penalty for acting as a mortgage broker without a licence is

"Upon conviction for an offence under the act, the penalty for an individual would be a fine of not more than $100,000 or imprisonment for up to one year, or both. The maximum penalty for a corporation would be a fine of $200,000."

On the other hand it is naive from your part CenterPoint not pressing the buyer to change the WHOIS and taking measures to complete the WHOIS change..

Actually we made approx 25 requests to the buyer to transfer the name and renew the domain including three registered letters. Our problem is we allowed the fact the DNS was redirected to slip through the cracks. I agree we should have shut it down immediately renewing the name

 

[wisconsin]

Don't really need or want the name. But it is still quite valuable...

Just my opinion... but you can't hold the domain hostage after you sold it and received the funds regardless of how many years have passed.

I understand you may have tried to transfer the domain several times but it does not give you the right to ownership and that's why the buyer is contacting you and requesting to transfer his name because he is the real owner.

The "use" of the domain is up to the buyer and if, in fact, the domain is being used in "fraud", it is not your responsibility but the owner's "Buyer"....Because you sold it and accepted the money.

Centerpoint, May I suggest you contact the "attorney" who drafted the sale contract and ask her or him what they think and feel free to share it.

Good Luck!

 

[Damion]

Actually it he was holding himself out as Mortgage Broker. The mortgage industry in Ontario is strictly regulated to prevent mortgage fraud

The penalty for acting as a mortgage broker without a licence is

"Upon conviction for an offence under the act, the penalty for an individual would be a fine of not more than $100,000 or imprisonment for up to one year, or both. The maximum penalty for a corporation would be a fine of $200,000."

Yes, the buyer then right? He paid the money but did not change the WHOIS info to his personal details. He can be using another name then his own name and even pretend to be you.

Actually we made approx 25 requests to the buyer to transfer the name and renew the domain including three registered letters. Our problem is we allowed the fact the DNS was redirected to slip through the cracks. I agree we should have shut it down immediately renewing the name

You can send letters all day long but in the end if you're unfortunately enough ending up dealing with shady characters like this they are not going to comply to letters from you or your lawyer. These type of people can only be stopped if they are prosecuted.

A letter requesting to change the WHOIS is not having any effect, a letter to CIRA to explain the situation can. Perhaps that would have had enough weight to convince the buyer to change the WHOIS to his identity. You should have contacted CIRA and like you said discontinued the DNS settings.

The "use" of the domain is up to the buyer and if, in fact, the domain is being used in "fraud", it is not your responsibility but the owner's "Buyer"....Because you sold it and accepted the money.

What about the responsibility not to comply to a C&D from a Goverment body?

He made use of the name and that is what he also paid for if he failed to transfer the domain to his own identity then it's his loss then.
He won't be awarded the domain in any instance anyway since he is unlawfully practicing as a mortgage broker which can even lead to prison time. He used the domain as a means for false (Illegal) representation of himself so i don't see him being the owner in these circumstances.

He paid for the domain to be the new owner but since the legal position of the buyer he can never be the new owner of this domain. So why should you transfer the domain to him? If you transfer the domain to the buyer you would not comply to a C&D letter from the government which may have legal consequences for yourself.

Who knows how many damages the buyer caused to the public under false pretences using the domains WHOIS to shake of responsibility towards himself?

The government don't care who the owner in theory is. They see the OP as the owner in the official records and he received the C&D letter so he needs to comply or face the consequences.

Unless the OP is a licensed Realtor should the domain contain "Realtor" in it he could hold the domain but if not and the domain contains the word "Realtor" he needs to comply with the C&D letter.

CREA represents more than 88,000 REALTORS® across Canada. The Association owns the MLS® trademark, has proprietary ownership of the REALTOR® trademark, and operates national web sites including mls.ca for residential properties and ICX.CA for commercial listings across Canada.

And i don't think the regulatory body in question is sending C&D letters to it's own members.

Once gain my 2 cents but ignore the buyer and adhere to the request of the party that issued the C&D letter or you may face legal consequences of your own.

 

[AbsolutelyFreeWeb]

Where is your moral regardless of the legal bull? is there any limit to your greed? you sell a domain for 3K and still want to keep it?

 

[Damion]

What about the morals of the buyer? since he was using the domain to misrepresent himself? Creating potential legal trouble for the OP!
Adhering to the request of the "buyer" is in this case a loss of morals in my opinion.

 

[AbsolutelyFreeWeb]

two wrongs don't make a right.

 

[Damion]

There are no two wrongs in this matter.

If i would put myself in the position of CenterPoint....

Why would i need to feel guilty not adhering the request of someone willfully choosing the path of illegality and by doing so putting me at potential risk in the process?
Why would i put myself at risk not transferring the name to someone that is responsible for illegal practices? The risk being here not to adhere to the C&D letter issued by a government body putting myself i a possible legal predicament.

I can not think of any justified reason that would make my actions immoral or wrong.

If the buyer really wants the domain which he will never get anyways in the end he can try to claim it from the government body handling his case after i would have transferred the domain to the issuer of the C&D letter.

There is nothing you could pin on me not morally or legally since i adhere the C&D letter of a government body.
And i am certainly not contemplating to adhere the request of a person willfully committing unlawful acts and that has used my identity in his unlawful endeavors exposing myself to potential legal violations

So the buyer lost his money?, in this case the saying "You snooze, You lose!" is the most appropriate expression. He has to bite the bullet so to speak for his premeditated non-responsiveness to compliment his unlawful endeavors and of course the consequences that face him for acting a non-licensed mortgage broker.

 

[globefrog]

Wipe your hands of it. Especially if your initial sale price was only $3k minus your attorney fee's etc. It sounds like the domains reputation is screwed now anyway, to the point where the government is involved. Id drop it and run. Not worth the headaches and if the government decided to pursue the unlicenced broker they will definately drag you through with him, even if there is no end consiquence you will waste a lot of time.

 

[wisconsin]

Where is your moral regardless of the legal bull? is there any limit to your greed? you sell a domain for 3K and still want to keep it?

I totally agree! Also, the buyer is the "legal" owner according to the "sale contract"

It appears that "seller" would have claimed ownership of the domain even there was no problem with its use....just because he renewed it and the proper transfer never occured.

Damion, I am not saying that the buyer is an "angel" but let's first establish the rightful ownership of the domain....then, you can discus its use and the "fraud" claim associated with it.

I sold you a car for $3k....you paid me and we signed a “sale contract” to document the transaction but for one reason or another you, buyer, never went to the DMV and changed the title ownership and you kept it under my name….later on, you used the car in a robbery.

Am I still the owner of the car?